Supreme Court of the United States

No. 07-440 IN THE Supreme Court of the United States WALTER ALLEN ROTHGERY, Petitioner, v. GILLESPIE COUNTY, TEXAS, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BRIEF FOR RESPONDENT CHARLES S. FRIGERIO LAW OFFICES OF CHARLES S. FRIGERIO Riverview Towers 111 Soledad Suite 840 San Antonio, Texas 78205 (210) 271-7877 GREGORY S. COLEMAN Counsel of Record EDWARD C. DAWSON MARC S. TABOLSKY RYAN P. BATES YETTER & WARDEN, LLP 221 West Sixth Street Suite 750 Austin, Texas 78701 (512) 533-0150 Counsel for Respondent Gillespie County, Texas

TABLE OF CONTENTS TABLE OF AUTHORITIES... Page STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 4 SUMMARY OF ARGUMENT... 10 ARGUMENT... 13 I. THE SIXTH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL PROTECTS AN ACCUSED S RIGHT TO A FAIR TRIAL... 13 II. THE PREINDICTMENT ARTICLE 15.17 MAGISTRATION DID NOT CONSTITUTIONALLY ENTITLE ROTHGERY TO THE ASSISTANCE OF COUNSEL... 19 A. Formal Criminal Proceedings Had Not Begun... 19 B. The Right to Counsel Did Not Attach Because There Was No Commitment to Prosecute at the Time of Rothgery s Preindictment Magistration... 21 C. Neither Brewer v. Williams nor Michigan v. Jackson Requires That the Right to Counsel Attach at an Article 15.17 Appearance Following Warrantless Arrest... 33 D. Rothgery s Waiver of Counsel at the Preindictment Article 15.17 Appearance Eliminated Any Right to Appointment Until a Subsequent Critical Stage... 37 iii (i)

ii TABLE OF CONTENTS CONTINUED Page III. ROTHGERY S PROPOSED EXTENSION OF THE SIXTH AMENDMENT RIGHT TO COUNSEL IS UNWARRANTED, UNWORKABLE, AND UNWISE. 45 A. Rothgery s Proposed Rule Would Conflict with This Court s Sixth Amendment Precedents... 45 B. The Liberty Interest Rothgery Seeks to Vindicate Is Properly and Adequately Protected by Other Constitutional and Statutory Rights... 47 C. Rothgery s Proposed Extension of the Right to Counsel Would Open the Door to Future Undesirable Extensions of That Right... 51 D. Rothgery s Proposed Expansion of the Right to Counsel Would Create Significant Practical Problems for Law Enforcement and Local Government... 53 CONCLUSION... 56

CASES iii TABLE OF AUTHORITIES Page Adams v. Robertson, 520 U.S. 83 (1997)... 34 Avery v. Alabama, 308 U.S. 444 (1940)... 18, 38 Bell v. Wolfish, 441 U.S. 520 (1979)... 49 Brewer v. Williams, 430 U.S. 387 (1977)...33, 34, 35 Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006)... 35 Clawson v. Wharton County, 941 S.W.2d 267 (Tex. App. 1996)... 24 Coleman v. Alabama, 399 U.S. 1 (1970)...passim Doggett v. United States, 505 U.S. 647 (1992)... 49, 51 Edwards v. Arizona, 451 U.S. 477 (1981)... 36 Escobedo v. Illinois, 378 U.S. 478 (1964)... 15, 47 Estes v. Texas, 381 U.S. 532 (1965)... 51 Fellers v. United States, 540 U.S. 519 (2004)...15, 16, 54 Fenner v. State, 381 Md. 1, 846 A.2d 1020 (2004)... 30 Gerstein v. Pugh, 420 U.S. 103 (1975)...passim Hamilton v. Alabama, 368 U.S. 52 (1961)...14, 17, 35, 40 Johnson v. New Jersey, 384 U.S. 719 (1966)... 15

iv TABLE OF AUTHORITIES CONTINUED Page Johnson v. Zerbst, 304 U.S. 458 (1938)...18, 22, 23 Kirby v. Illinois, 406 U.S. 682 (1972)...passim Maine v. Moulton, 474 U.S. 159 (1985)... 17, 54 Massiah v. United States, 377 U.S. 201 (1964)... 15 Metro. Stevedore Co. v. Rambo, 521 U.S. 121 (1997)... 34 Michigan v. Harvey, 494 U.S. 344 (1990)...17, 19, 21 Michigan v. Jackson, 475 U.S. 625 (1986)...16, 36, 38, 43 Mickens v. Taylor, 535 U.S. 162 (2002)... 13 Middendorf v. Henry, 425 U.S. 25 (1976)... 30 Miranda v. Arizona, 384 U.S. 436 (1966)... 15 Missouri v. Jenkins, 515 U.S. 70 (1995)... 38 Moore v. Illinois, 434 U.S. 220 (1977)... 36 Moran v. Burbine, 475 U.S. 412 (1986)...22, 23, 47 Padgett v. State, 590 P.2d 432 (Alaska 1979)... 30 Patterson v. Illinois, 487 U.S. 285 (1988)...passim People v. Mallory, 421 Mich. 229, 365 N.W.2d 673 (1984)... 37

v TABLE OF AUTHORITIES CONTINUED Page Powell v. Alabama, 287 U.S. 45 (1932)... 13, 14 Schneckloth v. Bustamonte, 412 U.S. 218 (1973)... 18 Scott v. Illinois, 440 U.S. 367 (1979)...26, 46, 54 State v. Boseman, 830 S.W.2d 588 (Tex. Crim. App. 1992)... 7, 20 State v. Luton, 83 Haw. 443, 927 P.2d 844 (1996)... 25 State v. Masaniai, 63 Haw. 354, 628 P.2d 1018 (1981)... 22 State v. Pierre, 277 Conn. 42, 890 A.2d 474 (2006)... 22 State v. Tucker, 137 N.J. 259, 645 A.2d 111 (1994)... 25 Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007)... 7, 20 Texas v. Cobb, 532 U.S. 162 (2001)...passim United States v. Arnold, 106 F.3d 37 (CA3 1997)... 44 United States v. Ash, 413 U.S. 300 (1973)...passim United States v. Ewell, 383 U.S. 116 (1966)... 50 United States v. Gouveia, 467 U.S. 180 (1984)...passim United States v. Hooker, 418 F.Supp. 476 (MD Pa. 1976)... 30 United States v. Marion, 404 U.S. 307 (1971)...49, 50, 51, 55

vi TABLE OF AUTHORITIES CONTINUED Page United States v. Wade, 388 U.S. 218 (1967)...passim White v. Maryland, 373 U.S. 59 (1963)... 14 Williams v. Brewer, 375 F.Supp. 170 (SD Iowa 1974)...33, 34, 35 Wright v. Denato, 178 N.W.2d 339 (Iowa 1970)... 34 CONSTITUTIONAL PROVISIONS U.S. Const., Amdt. 4... 48 U.S. Const., Amdt. 6...10, 13, 21 Tex. Const., Art. I, 10... 20, 21 STATUTES Mich. Comp. Laws 764.26... 36 Tex. Code Crim. Proc. art. 1.051...passim art. 2.01... 24 art. 2.02... 24 art. 2.09... 4 art. 2.10... 4 art. 2.13... 9 art. 14.06... 5, 24 art. 15.02... 53 art. 15.04... 20 art. 15.17...passim art. 16.01...5, 6, 27 art. 16.06... 27 art. 16.07... 27 art. 16.08... 27 art. 21.01... 20 art. 21.02... 20 art. 21.20... 20

vii TABLE OF AUTHORITIES CONTINUED Page Tex. Code Crim. Proc. art. 21.21... 20 art. 21.22... 20 art. 26.01... 36 Tex. Penal Code 12.21... 46 46.02... 26, 46 46.04... 4, 25 OTHER AUTHORITIES Colbert, Thirty-Five Years After Gideon: The Illusory Right to Counsel at Bail Proceedings, 1998 U. Ill. L. Rev. 1... 30 Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional Premises Underlying the Law of Confessions, 17 Am. Crim. L. Rev. 1 (1979)... 36 4 W. LaFave et al., Criminal Procedure 14.2(a) (2d ed. 1999)... 46 Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Nw. L. Rev. 1635 (2003)... 32 Brief for Petitioner, No. 74-1263, 1976 WL 181163 (Feb. 12, 1976)... 33 Brief for Petitioner, No. 84-1539, 1985 WL 669876 (July 12, 1985)... 37

STATEMENT OF THE CASE No court has ever recognized the theory Rothgery asserts, that there is a Sixth Amendment right to continuous representation by counsel, unconnected with any identifiable event constituting a critical stage, from just after the time of arrest. Rothgery s vision of the Sixth Amendment right to counsel is contrary to the Court s long-settled precedent in two key respects: (1) it seeks to quietly overturn Gerstein v. Pugh, 420 U.S. 103 (1975), by defining a probablecause determination on a warrantless arrest as the formal initiation of adversary judicial proceedings; and (2) contrary to Kirby v. Illinois, 406 U.S. 682 (1972), and its progeny, it seeks to decouple appointment from the need for assistance of counsel at a critical stage of proceedings. The Court has articulated a consistent general rule that the formal initiation of adversary judicial proceedings is the point at which the Sixth Amendment right to the assistance of counsel is triggered. There were only two possible events that Rothgery could claim as a critical proceeding that might entitle him to appointed counsel. Regarding the first, the initial appearance after his arrest, Gerstein makes clear that counsel was not required and, in any event, he expressly declined the assistance of counsel. At the second, the appearance after his indictment, he requested and was appointed counsel. There was no event or proceeding anytime between his first and second appearance for which the Constitution required appointment of counsel to Rothgery. None of the factors that have led the Court to recognize certain limited exceptions to the formalcharges rule for specific, critical stages of prosecution apply because Rothgery s appearance was nonadver-

2 sarial, nonevidentiary, nonprosecutorial, and held no potential to unfairly prejudice Rothgery s eventual defense to any charge that might ultimately be filed against him. Moreover, without some hearing or event at which the assistance of counsel was constitutionally required (or needed), it is impossible to define an event of attachment that would make the failure to appoint counsel a violation of Rothgery s Sixth Amendment rights. In advancing his claim, Rothgery is attempting to unmoor the Sixth Amendment from its historical and doctrinal underpinnings, by asking the Court to determine the question of attachment while leaving the underlying question of a constitutional violation completely unaddressed. Indeed, he expressly asks the Court to decide the issue of attachment independent of whether there was a critical proceeding that would require the actual attendance or assistance of counsel. In so doing, Rothgery stands the Court s traditional right-to-counsel jurisprudence on its head by seeking to sever the question of attachment from the inherently connected analysis of whether the Court can identify some critical proceeding at which the assistance of counsel is necessary to protect the defendant s right to a fair trial. Knowing that he waived his right under Texas law to have counsel present at the article 15.17 appearance, Rothgery never asserted in his complaint that the county (or, more accurately, the state district court) was required to ensure that he had the assistance of counsel when he was magistrated. Instead, Rothgery asserted that counsel should have been appointed for him at some unspecified time after he had been released on bail, without reference

3 to another critical proceeding at which counsel s presence and assistance was required. Beyond the fact that United States v. Gouveia, 467 U.S. 180, 189 (1984), makes very clear that a person is not entitled to appointment of counsel to act as a private investigator to begin to develop a defense when no formal charges are pending, there was no defense to prepare. No decision had been made by any prosecutor to bring any charges against Rothgery, much less felony charges. It was entirely possible that the prosecutor could have decided to bring only misdemeanor charges for openly carrying a handgun or no charges at all. Under the circumstances, any attorney appointed in the interim could at most have served as an investigator and precharge negotiator, but the Court has rejected those roles as being covered by the Sixth Amendment right to the assistance of counsel. When the Court has previously said that the right to the assistance of counsel attaches at or after the initiation of adversary judicial proceedings, it has meant that the right attaches to some proceeding or event at which the assistance of counsel is necessary (like an interrogation or a postindictment lineup), not merely that an obligation to appoint counsel arises out of the ether. By trying to push the event of attachment back to a presentation of warnings that follows every arrest in Texas and to sever the natural bonds between attachment and critical proceedings, Rothgery is attempting to dangerously steer the Court into nonsensically defining the Sixth Amendment trigger in an empty, formalistic way that has no roots in the Court s consistent pronouncements on the appointment of counsel. Such a formalistic rule would not serve the interests of the Sixth Amendment. It would instead further

4 burden state and local appointment systems without any textual basis in the Sixth Amendment for doing so, without any measurable benefit to the fair-trial interests that underlie the Sixth Amendment right to counsel, and without any material identifiable constitutional problem in the appointment processes that exist throughout the United States. STATEMENT OF FACTS On July 14, 2002, Walter Rothgery was fired as manager of the Oakwood RV Park, in Fredericksburg, Texas, and became upset and verbally abusive towards the park s owner. SJ Opp. Ex. 1. The next day, police received a report that Rothgery was walking around the RV park with a pistol, handcuffs, mace, extra bullets, and a knife. Ibid. When officers arrived, they found Rothgery in possession of a handgun as well as a long knife. Ibid. An instant background check indicated that he was a felon who had been convicted of possession of a controlled substance in California. Ibid. Officers then arrested Rothgery on suspicion of being a felon in unlawful possession of a firearm, a third-degree felony. Tex. Penal Code 46.04. After his arrest, Rothgery was taken to jail, where he was booked, photographed, and then presented to a magistrate. 1 SJ Opp. Ex. 3 at 62, 64-65. According to Rothgery, his initial encounter with the magistrate 1 Under Texas law, magistrates include various officials appointed in particular counties by judges in that county. Tex. Code Crim. Proc. art. 2.09. Magistrates are charged with preserving the peace through lawful means, issuing process to prevent and suppress crime, and causing the arrest of offenders. Id. art. 2.10. The magistrate Rothgery spoke to was a Gillespie County justice of the peace. SJ Opp. Exs. 3, 4.

5 occurred at the same time he was being processed from his arrest. Id., at 64 ( [W]hen they were taking my pictures and everything, I turned around to a little glass window and talked to a magistrate. ). He appeared before the magistrate again the next morning. Rothgery described his appearance before the magistrate as standing at a little glass window filling out forms. Id., at 62. At his appearance, Rothgery went through the forms, and the magistrate gave him certain warnings. This appearance before the magistrate, which is sometimes referred to in Texas practice as a magistration or being magistrated, is required under articles 14.06 and 15.17 of the Texas Code of Criminal Procedure, to give every arrestee required information and warnings about his rights. Tex. Code Crim. Proc. arts. 14.06, 15.17. Through the little glass window, Rothgery was given a form called a Warning By Magistrate (Setting Bail & Right to Attorney). SJ Ex. B. The form informed Rothgery that he had been accused of unlawful possession of a firearm by a felon, but that charges had not yet been filed against him. Ibid. (form stating that charges will be filed in district court). It informed him of his right to have an attorney present [i]f peace officers or attorneys representing the state question you, and that [i]f you cannot afford to hire a lawyer, you have the right to have one appointed. Ibid. It next informed him of his right to remain silent, and that any statement he made could be used against him. Ibid. It informed him that [i]n felony cases, you have the right to an examining trial, which is a Texas preindictment procedure in felony cases for assessing the sufficiency of evidence to prosecute. Ibid.; see Tex. Code Crim.

6 Proc. art. 16.01. The form indicated that Rothgery s bond was set at $5,000. SJ Ex. B. The form also included several certifications by the magistrate. The magistrate certified that, in accordance with state statutory and Fourth Amendment requirements, Rothgery had been brought before him not later than 48 hours after arrest, that the magistrate had informed Rothgery of his rights to an attorney and appointment of an attorney, and that there was a paper record of the magistrate s advising Rothgery of his right to an appointed attorney. Ibid. Finally, the magistrate certified, and Rothgery confirmed by initialing, that Rothgery had decided to waive counsel at that time. Ibid. Rothgery had, and waived, a Texas statutory right to consult with counsel before his bail was set. See Tex. Code Crim. Proc. art 15.17(a). If Rothgery had requested counsel at that time, Gillespie County procedures provided that counsel would have been appointed for him. SJ Ex. B; SJ Ex. H at 1. The magistrate and the booking officer signed the form at the bottom. SJ Ex. B. Rothgery also signed the bottom of the form, under the title PERSON WARNED. Ibid. At the same time, the magistrate also reviewed and signed an Affidavit of Probable Cause prepared by the arresting officer. SJ Ex. A. The affidavit set forth that witnesses from the trailer park had reported that Rothgery had been carrying a weapons belt, the fact that officers found him carrying a firearm, and that a background check had revealed that he had been convicted in California of felony possession of a controlled substance. Ibid. The magistrate s signature certified that, based on the affidavit, probable cause existed for Rothgery s

7 arrest. Ibid. The filing of the probable-cause affidavit to justify a warrantless arrest was insufficient to constitute the filing of formal criminal charges against Rothgery. Felonies may only be formally charged in Texas courts by indictment or, upon waiver of indictment by a defendant, by information. Teal v. State, 230 S.W.3d 172, 174 (Tex. Crim. App. 2007); State v. Boseman, 830 S.W.2d 588, 590, n.3 (Tex. Crim. App. 1992). No one from the Gillespie County prosecutor s office was aware of, much less present at, Rothgery s appearance before the magistrate. Pet. App. at 6. Prosecutors were not aware of the filing or contents of the affidavit of probable cause, and the affidavit did not reflect a decision or commitment by prosecutors to prosecute Rothgery. Ibid. Rothgery was not questioned during the appearance, other than to acknowledge that he had received the required warnings. SJ Opp. Ex. 3 at 64. No witnesses were presented or examined, nor was any evidence considered. Ibid. After Rothgery was processed, magistrated, bonded, and released, there was no case or charge against him. Approximately six months passed, during which Rothgery was neither imprisoned nor under indictment. SJ Opp. Ex. 3 at 86. During that period, no investigators or prosecutors contacted Rothgery or communicated with him about his arrest. Rothgery claims to have requested appointment of counsel several times in the period after the initial article 15.17 appearance, but before his indictment, including immediately after the appearance itself. 2 2 There is no evidence of most of these claimed requests other than Rothgery s own testimony, but in the summary-judgment posture of this case, those claims must be taken as true.

8 SJ Opp. Ex. 3 at 71-72, 86-87. Texas law, in any event, provides that an indigent arrestee out on bail need not be provided with counsel until the defendant s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first. Tex. Code Crim. Proc. art. 1.051(j). The Gillespie County prosecutor s office, after eventually reviewing Rothgery s file, decided to indict and prosecute him. On the afternoon of January 17, 2003, a grand jury indicted Rothgery for being a felon in possession of a firearm. SJ Opp. Ex. 9. A capias then issued for Rothgery, which, unlike the prior affidavit of probable cause, clearly indicated that Rothgery had been indicted for unlawful possession by a felon. SJ Ex. C. Rothgery was rearrested on January 18, 2003. On January 19, he was again magistrated based on the second arrest. The warning form from the second magistration, unlike that from the first, indicated that he had been accused of a criminal offense that had been filed in the district court. SJ Ex. E. The form also, unlike the first one, indicated that Rothgery had requested the appointment of counsel. Ibid. 3 On January 23, Gillespie County received a request for counsel from Rothgery and faxed it to the district judge, who promptly appointed counsel for him. SJ Ex. F. The three business days that passed before the judge appointed counsel for Rothgery complied with Texas law and with Gillespie County s plan for appointing counsel. (January 18th and 19th were 3 The form itself was identical; the differences were indicated by strikethroughs and the checking of different boxes on the form.

9 weekend days, and January 20th was a holiday.) See Tex. Code Crim. Proc. art. 1.051(i). After being appointed, Rothgery s lawyer began working on the file on January 31, and first consulted with Rothgery on February 9. SJ Opp. Ex. 13. The lawyer ultimately secured paperwork indicating that Rothgery had been allowed to withdraw his guilty pleas in his California case after completing a diversionary program. SJ Opp. Ex. 14; Pet. App. at 2. The indictment against Rothgery was ultimately dismissed. Rothgery sued Gillespie County under 42 U.S.C. 1983, seeking damages for the county s not appointing him counsel during the months between his initial magistration and his indictment. Compl. at 8-10. He claimed that the County had a policy of not appointing counsel for arrestees released from jail on bond and that this policy violated his Sixth and Fourteenth Amendment rights. Pet. App. at 4. Gillespie County moved for summary judgment on numerous grounds. Mot. for SJ at 3-10. The district court dismissed the case on the ground that Rothgery s right to counsel did not attach until he was indicted by the State and the Fifth Circuit affirmed. Pet. App. at 4, 12. The Fifth Circuit, applying this Court s precedents along with its own, focused on whether the article 15.17 magistration marked the commencement of adversarial judicial proceedings against Rothgery and concluded it had not. Pet. App. at 12. In particular, the court concluded that the State had not committed to prosecute Rothgery. Id., at 6 (citing Tex. Code Crim. Proc. art. 2.13). Rothgery then

10 petitioned for certiorari, and the Court granted review. SUMMARY OF ARGUMENT The Sixth Amendment guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence. U.S. Const., Amdt. 6. Because the right is textually limited to actual criminal prosecutions, the right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against an arrestee. Kirby, 406 U.S., at 688. Rothgery s magistration did not initiate adversary judicial proceedings against him. The Fifth Circuit, consistent with this Court s jurisprudence on the Sixth Amendment right to the assistance of counsel, held that adversarial judicial proceedings begin when the government commits to prosecution. Because the core purpose of the Sixth Amendment guarantee of the accused s right to assistance of counsel is to preserve his right to a fair trial by protecting the unaided layman at critical confrontations with his adversary, Gouveia, 467 U.S., at 189, the determinative fact must be whether the State has become the adversary of the accused. The Court has consistently followed the general rule that adversary judicial proceedings begin with the filing or presentation of formal charges, and in deciding whether to recognize exceptions has consistently applied an analysis that considers whether the State has actually become the adversary of the accused. That condition was simply not met by Rothgery s initial article 15.17 appearance, which was a fundamentally nonadversarial proceeding.

11 Rothgery s appearance before the magistrate included the probable-cause determination required by Gerstein v. Pugh, 420 U.S. 103 (1975), statutory warnings required by article 15.17, and the setting of bail. Nothing during that appearance initiated adversary judicial proceedings, nor was any of it a critical stage of criminal proceedings. Combining them into one hearing cannot change that conclusion. The appearance was nonadversarial, administrative, occurred before the filing of any formal charges, provided no opportunity for examination of witnesses or other interaction between Rothgery and the State, and had no possible effect on Rothgery s right to a fair trial on any charges that might ultimately be brought against him. When it concluded, Rothgery was free on bail. There was no case, no charge, and no decision had been taken to prosecute indeed the prosecutor was not even aware of the arrest or its circumstances. Moreover, six months of inaction followed. Nothing in this Court s cases suggests or holds, as Rothgery contends, that an accused has a constitutional right to appointment of counsel as soon as adverse proceedings begin even when no critical event such as an interrogation intervenes. Thus, even if Rothgery s article 15.17 magistration had initiated adversary judicial proceedings, counsel was appointed for him well in advance of any critical stage of the prosecution, so there was in any event no violation of his right to counsel. Rothgery s proposed standard is contrary to the Court s cases, unworkable, and unwise. The Sixth Amendment does not require the appointment of counsel to give a defendant a running head start on the prosecution before prosecution is even begun.

12 Instead the Court has firmly rejected that proposition, making clear that our cases have never suggested that the purpose of the right to counsel is to provide a defendant with a preindictment private investigator. Gouveia, 467 U.S., at 191. But that is exactly what Rothgery proposes that his rights were violated by not having a lawyer appointed to conduct an investigation to prevent him from being indicted (because it is uncontested that, once he was indicted, he was timely provided with a lawyer, and the charges were ultimately dismissed). Accepting Rothgery s position would call into question numerous precedents of this Court by functionally extending the Sixth Amendment right to counsel virtually to the point of arrest. It would, further, do so for no good reason, given that the interests Rothgery is seeking to vindicate are already protected by other rights such as the Fourth Amendment right against unlawful seizures, the Fifth Amendment right against self-incrimination, the Sixth Amendment right to a speedy trial, statutes of limitations, speedy-trial statutes, and statutes (like Texas s) that ensure assistance of counsel for persons held in custody. Moreover, accepting Rothgery s contention would cause widespread practical harm to law enforcement and local authorities, and visit substantial new costs on counties in Texas and elsewhere if forced to appoint and pay for counsel prior to indictment even when no critical proceedings are taking place. It would extend the Sixth Amendment right to counsel to the routine, administrative events accompanying the processing of a suspect immediately after arrest, and even possibly back to the point of arrest itself.

13 ARGUMENT I. THE SIXTH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL PROTECTS AN ACCUSED S RIGHT TO A FAIR TRIAL. The Sixth Amendment guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence. U.S. Const., Amdt. 6. The core purpose of the right to counsel has long been recognized as assur[ing] Assistance at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. United States v. Ash, 413 U.S. 300, 309 (1973). Thus, the right to counsel has been accorded... not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Mickens v. Taylor, 535 U.S. 162, 165 (2002) (quotation omitted). The amendment s text reflects the Framers historical motivations for rejecting the English common-law rule denying counsel to accused felons, particularly a solicitude for unaided laymen confronted by an intricate procedural system and a desire to minimize imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Ash, 413 U.S., at 307-309. The Court s modern Sixth Amendment jurisprudence has consistently focused on preserving the right to a fair trial by ensuring that an accused has the assistance of counsel during critical stages of postindictment, pretrial proceedings. In Powell v. Alabama, 287 U.S. 45, 53 (1932), the Court laid out this concern: during perhaps the most critical period of the proceedings against the[] defendants, that is to

14 say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself. Id., at 57. Following Powell, the Court recognized that the right to counsel encompassed pretrial events and proceedings at which the absence of counsel might derogate from a subsequent fair trial. These proceedings included arraignments at which defenses must either be raised or waived, Hamilton v. Alabama, 368 U.S. 52, 53-54 (1961), entry of a plea, White v. Maryland, 373 U.S. 59, 59 (1963) (per curiam), and postindictment lineups, United States v. Wade, 388 U.S. 218, 236-237 (1967). All of these cases, and others decided by the Court, recognized the right to counsel for proceedings that took place after the filing of formal charges that is, the initiation of the criminal prosecution described by the Sixth Amendment. And each of them was firmly rooted in the commitment to protecting the right to a fair trial. See, e.g., id., at 224. The Court for the first time in Coleman v. Alabama recognized a right to counsel for a proceeding that preceded the filing of formal charges: adversarial preliminary hearings at which defendants were afforded an opportunity to cross-examine the witnesses against them, 399 U.S. 1, 9-10 (1970) (plurality opinion). Throughout these cases, the touchstone remained the right to a fair trial. Thus, the Court clearly stated the proper test to determine whether the right to counsel should be extended to cover a particular

15 pretrial proceeding: A federal court must, first, scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself, and, second, analyze whether potential substantial prejudice to defendant s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. Wade, 388 U.S., at 227. When the absence of counsel from a particular confrontation would prejudice the fair-trial right, the Sixth Amendment right attaches to assure that the accused s interests will be protected consistently with our adversary theory of criminal prosecution. Ibid. The Court also, in parallel with these cases, beginning with Massiah v. United States, 377 U.S. 201 (1964), and Escobedo v. Illinois, 378 U.S. 478 (1964), developed a right-to-counsel jurisprudence focused on protecting the accused s rights not to prejudice his defense through communications with police and prosecutors. The prime purpose of rightto-counsel cases in this context was not to vindicate the constitutional right to counsel as such, but, like Miranda [v. Arizona, 384 U.S. 436 (1966)], to guarantee full effectuation of the privilege against self-incrimination. Kirby, 406 U.S., at 689 (quoting Johnson v. New Jersey, 384 U.S. 719, 729 (1966)). Thus, the Court developed a test to evaluate whether police communications with an accused violate the accused s Sixth Amendment rights, which looks to whether police have deliberately elicited incriminating statements from an accused. See, e.g., Fellers v. United States, 540 U.S. 519, 523-524 (2004) (collecting cases). That test is related to, but

16 expressly distinguished from, the Fifth Amendment custodial-interrogation standard. Ibid. (citing Michigan v. Jackson, 475 U.S. 625, 632, n.5 (1986)). In subsequent cases, the Court has applied these fundamental principles to answer new questions about whether the Sixth Amendment right to counsel extended to other sorts of proceedings, but always has hewed to the bedrock principle of protecting the ultimate right to a fair trial by providing assistance after the initiation of criminal prosecution for those proceedings that could affect the ultimate fairness of the trial. Thus, the Court rejected the extension of the right to preindictment lineups in Kirby, 406 U.S., at 689-690. In doing so, the Court declared that the initiation of adversary judicial criminal proceedings marked the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable. Id., at 689-690. The Court also rejected the extension of the Sixth Amendment guarantee to a prosecutor s interview with an identification witness using a photographic display that included a picture of the defendant. Ash, 413 U.S., at 321. The Court rejected the expansion because there was no possibility the accused would be misled on the law or otherwise overpowered by his professional adversary, and providing counsel under such circumstances would not produce equality in a trial-like adversary confrontation. Id., at 317. Similarly, the Court rejected the extension of the guarantee to counsel to the probable-cause determination following a warrantless arrest. Gerstein, 420 U.S., at 122-123. And, finally, in Gouveia, the Court rejected the argument that preindictment detention alone triggers the

17 appointment of counsel, reaffirming that it has never held that the right to counsel attaches at the time of arrest or suggested that the purpose of the right to counsel is to provide a defendant with a preindictment private investigator. Gouveia, 467 U.S., at 190, 191. There have been few significant attempts since Gouveia to expand the formal pretrial proceedings to which the right to counsel applies, and few cases in this Court since then addressing the scope of the right. This quiescence indicates the broad acceptance, and demonstrated practical workability, of the settled doctrine that Rothgery seeks to alter: Sixth Amendment rights attach at the initiation of adversary judicial criminal proceedings and require appointing counsel at certain critical pretrial proceedings that follow or coincide with initiation. Id., at 189. The right to counsel entitles an accused to the guiding hand of counsel, Hamilton, 368 U.S., at 54, at all points during a prosecution when counsel s absence might derogate from the accused s right to a fair trial, Wade, 388 U.S., at 226. Importantly, the right to counsel [i]s not implicated, as a general matter, in the absence of some effect of the challenged conduct on the trial process itself. Michigan v. Harvey, 494 U.S. 344, 363 (1990) (Stevens, J., dissenting); see also Ash, 413 U.S., at 311 ( The Court consistently... has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself. ). And the right to the assistance of counsel is shaped by the need for the assistance of counsel, Maine v. Moulton, 474 U.S. 159, 170 (1985), and so requires a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding and the

18 dangers to the accused of proceeding without counsel. Patterson v. Illinois, 487 U.S. 285, 298 (1988). Certain events to which the guarantee of counsel applies require preparation, so it may be necessary to appoint counsel before such critical stages, and the more preparation required, the further in advance the appointment must be made. See Avery v. Alabama, 308 U.S. 444, 446 (1940). But the Sixth Amendment right does not require establishing an attorney-client relationship from the first instant of pretrial confinement in order to fend off future indictment and prosecution. Gouveia, 467 U.S., at 191. This is because the right to counsel does not in the first instance directly protect citizens liberty interests; citizens liberty is protected by the Fourth Amendment s prohibition on unreasonable seizures and the Sixth Amendment guarantee of a speedy trial. Ibid.; Gerstein, 420 U.S., at 124-125; see Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973) ( There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. ). Instead, the right to counsel protects personal liberty only indirectly, by ensuring that substantial deprivations of liberty those that would be unreasonable under the Fourth Amendment because of their duration may only be imposed by the State following a fair trial. See Johnson v. Zerbst, 304 U.S. 458, 462 (1938).

19 II. THE PREINDICTMENT ARTICLE 15.17 MAGISTRATION DID NOT CONSTITUTIONALLY ENTITLE ROTHGERY TO THE ASSISTANCE OF COUNSEL. A. Formal Criminal Proceedings Had Not Begun. Kirby v. Illinois firmly established that a person s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. 406 U.S., at 688. Kirby thus affirmed the general rule that the right to counsel attaches at the point that formal charges are filed. See Harvey, 494 U.S., at 358, n.5 (Stevens, J., dissenting) ( [T]he criminal prosecution to which the Sixth Amendment refers begins when formal charges are filed. ). In Rothgery s case, it cannot reasonably be disputed that there was no criminal prosecution at the time of his arrest and magistration. There were no charges filed or pending, and the affidavit of probable cause filed by the arresting police officer was unquestionably insufficient as a formal charging instrument under controlling Texas law. SJ Ex. A. The preliminary character of this stage of the investigation failed to satisfy the Sixth Amendment s textual prerequisite for the right to counsel existence of a criminal prosecution. Therefore, consistent... with the literal language of the Amendment, which requires the existence of both a criminal prosecutio[n] and an accused, Gouveia, 467 U.S., at 188 (alteration in original), Rothgery derived no right to counsel from his preindictment article 15.17 appearance. In Texas, the filing of a probable-cause affidavit to justify a warrantless arrest does not constitute the

20 filing of formal criminal charges against a suspect. The Texas Constitution requires that, unless waived by the defendant, the State must obtain a grand jury indictment in a felony case. Teal v. State, 230 S.W.3d, at 174; see Tex. Const., Art. I, 10. Felonies thus may only be formally charged in Texas courts by indictment or, upon waiver, by information. 4 An indictment is the written statement of a grand jury accusing a person therein named, Tex. Code Crim. Proc. art. 21.01; it must, at a minimum, satisfy nine formal requirements specified by statute, id. art. 21.02. An information, which must be filed and presented in behalf of the State [of Texas] by the district or county attorney, id. art. 21.20, must comport with a similar list of formal requirements, including [t]hat it appear to have been presented by the proper officer, id. art. 21.21(3). The probable-cause affidavit filed to document the justification for Rothgery s warrantless arrest cannot constitute a formal felony charging document in Texas courts. It is plainly neither an indictment nor an information, and so it could not formally charge Rothgery with a felony under Texas law. See Tex. Const., Art. I, 10. Nor could anything else in an article 15.17 appearance following warrantless arrest be interpreted as constituting a formal charge. 4 Complaints, which are affidavits sworn before a magistrate in support of an arrest warrant, may play a role in signaling a commitment to prosecute, when filed by a district or county attorney, but they are not themselves formal charging documents. See Tex. Code Crim. Proc. art. 15.04. [T]he process of prosecution is usually initiated by the filing of a criminal complaint. But the complaint in [felony] proceedings will serve only as a basis for the issuance of an information or the commencement of the indictment process. Boseman, 830 S.W.2d, at 591; see Tex. Code Crim. Proc. art. 21.22.

21 Indeed, Rothgery was directly told that he had not yet been charged. SJ Ex. B. In light of the absence of any formal charge in this case, it is clear that Rothgery s article 15.17 appearance did not constitute one of the criminal prosecutions to which the Sixth Amendment is limited. U.S. Const., Amdt. 6. It is the commencement of a formal prosecution, indicated by the initiation of adversary judicial proceedings, that marks the beginning of the Sixth Amendment right. Texas v. Cobb, 532 U.S. 162, 176 (2001) (Kennedy, J., concurring). Arrest and detention alone are insufficient to activate the Sixth Amendment s protections, because they are investigatory steps that precede the beginning of an actual criminal prosecution. In contrast, the prosecutions that do implicate the amendment are inextricably linked to the formal charging processes that define their initiation. See Harvey, 494 U.S., at 358, n.5 (Stevens, J., dissenting). [T]he literal language of the Amendment... requires the existence of both a criminal prosecutio[n] and an accused, Gouveia, 467 U.S., at 188, but neither exists at the time of an article 15.17 appearance following a warrantless arrest. B. The Right to Counsel Did Not Attach Because There Was No Commitment to Prosecute at the Time of Rothgery s Preindictment Magistration. While in Kirby the Court generally considered the right to counsel to be historically and rationally applicable only after the onset of formal prosecutorial proceedings, 406 U.S., at 690, it has also pragmatically recognized that the need to extend the

22 right may arise from changing patterns of criminal procedure and investigation that... tend[] to generate pretrial events that might appropriately be considered to be parts of the trial itself, Ash, 413 U.S., at 310. Kirby accordingly provided a functional analysis for determining whether a specific preindictment event so implicated a suspect s right to a fair trial that it merited the protection of the right to counsel. The Sixth Amendment right to counsel attaches, and adversary judicial proceedings are initiated, when the government has committed itself to prosecute, and the adverse positions of government and defendant have solidified. Kirby, 406 U.S., at 689. 5 It is then that a defendant finds himself faced with the prosecutorial forces of organized society and is immersed in the intricacies of substantive and procedural criminal law. 6 Ibid.; cf. Johnson v. 5 See also State v. Pierre, 277 Conn. 42, 95, 890 A.2d 474, 507 (2006) ( [W]e conclude that it is not simply the signing of the information document that triggers the protections of the sixth amendment. Rather, it is the state s decision to move forward with the prosecution of the crimes charged in the information document, by arraigning the suspect and filing the information with the court, that signifies the state s commitment to prosecute as well as the initiation of the adversary judicial proceedings that trigger a defendant s right to counsel under the sixth amendment. ); State v. Masaniai, 63 Haw. 354, 360-361, 628 P.2d 1018, 1023 (1981) (finding no attachment of right to counsel after arrest pursuant to warrant because there had been no prosecutorial involvement in procuring the warrant). 6 Rothgery s proposed bright-line test, which would find attachment of the right to counsel at any initial appearance before a magistrate, would essentially nullify Kirby s extended discussion of why the test for attachment is not a mere formalism. See 406 U.S., at 689-690. Nor is this nullifying effect limited to Kirby. E.g., Moran v. Burbine, 475 U.S. 412,

23 Zerbst, 304 U.S., at 463 ( It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. (emphasis added)). Specific applications of this functional analysis have resulted in the recognition of the right to counsel for a very limited set of specific preindictment situations, including adversarial preliminary hearings. See, e.g., Coleman, 399 U.S., at 9-10. But applying Kirby s functional analysis to Rothgery s preindictment article 15.17 appearance makes clear, as the Fifth Circuit correctly determined, that the right to counsel had not attached. [U]ntil such time as the government has committed itself to prosecute, and... the adverse positions of government and defendant have solidified the Sixth Amendment right to counsel does not attach. Moran v. Burbine, 475 U.S. 412, 432 (1986) (quoting Gouveia, 467 U.S., at 189). Any possible claim that the State was committed to prosecuting Rothgery is undermined by the tentative, administrative, and preliminary nature of the article 15.17 appearance and by the uncontested fact that prosecutors had not even considered charging, let alone formally charged, Rothgery at the time of his appearance. Pet. App. at 6. The article 15.17 appearance, which follows every arrest in Texas, fails every aspect of the functional analysis Kirby prescribes for events before the filing of formal charges. 432 (1986); Gouveia, 467 U.S., at 189; Ash, 413 U.S., at 310; see also Part III infra.

24 First, the government had not committed itself to prosecute. There is no role for a prosecutor either in the process preceding an article 15.17 appearance or at the appearance itself. It is thus impossible to argue that the State commits itself to prosecute at every such appearance following a warrantless arrest. Indeed, given that state law requires such an appearance for every arrestee, see Tex. Code Crim. Proc. arts. 14.06, 15.17, that argument amounts to the claim that the State has statutorily committed to prosecute every suspect arrested by the police. That claim is implausible and directly contrary to Texas law and practice. In Texas, as elsewhere, the decision whether or not to initiate a prosecution remains the quintessential function of a prosecutor. Clawson v. Wharton County, 941 S.W.2d 267, 272 (Tex. App. 1996) (emphasis added); accord Tex. Code Crim. Proc. arts. 2.01, 2.02 (providing that district and county attorneys represent the State in criminal cases). Prosecutors unquestionably played no role in Rothgery s case before or at his article 15.17 appearance. See Pet. App. at 6. Nor is this conclusion changed by the arresting officer s affidavit of probable cause that was approved by the magistrate. SJ Ex. A. Because the probable-cause determination does not commit the State to prosecute, it does not cause the right to counsel to attach. The officer s providing evidence to a neutral magistrate is required to justify any warrantless detention under Gerstein. 420 U.S., at 114. Gerstein requires specification of an offense: The standard for arrest is probable cause, defined in terms of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. Id., at 111 (quotation, alteration omitted). But Gerstein also

25 makes very clear that [b]ecause of its limited function and its nonadversary character, the probable cause determination is not a critical stage in the prosecution that would require appointed counsel. Id., at 122. Exercising prosecutorial discretion is a key function of a district or county prosecutor, and the State cannot be committed to prosecuting by a police officer s decision to detain a suspect on probable cause. And, since the probable-cause determination does not reflect a commitment to prosecute, it does not require the immediate appointment of counsel. Ibid.; Kirby, 406 U.S., at 689. 7 Second, the adverse positions of the State and the suspect have not solidified at the point of an article 15.17 appearance following a warrantless arrest. Even if a prosecutor had considered whether to bring charges prior to such an appearance, the precise nature of the charges to be filed could well remain unclear. See State v. Tucker, 137 N.J. 259, 290, 645 A.2d 111, 127 (1994) (noting that even after the filing of a criminal complaint roughly half of all cases are dismissed, downgraded, or diverted to pretrial intervention programs). Based on what the police knew, Rothgery could have been charged, as he eventually was, with the felony of unlawful possession of a firearm by a felon, Tex. Penal Code 46.04, but he might also have been charged with the distinct misdemeanor of unlawful carrying of a 7 State v. Luton, 83 Haw. 443, 449-450, 927 P.2d 844, 850-851 (1996) ( The prosecution does not initiate charges against a defendant at a [Gerstein hearing], a non-adversarial proceeding which serves only to determine if future incarceration is warranted. ); id., at 450, n.17, 927 P.2d, at 851, n.17 (citing cases from other jurisdictions reaching similar holdings).

26 weapon regardless of his criminal record, id. 46.02. Because of the offense-specific nature of the Sixth Amendment right to counsel, such uncertainty has critical effects on the scope of the right itself, as well as on the responsibilities of police and prosecutors after the right attaches. See Cobb, 532 U.S., at 167-168. Indeed, had Rothgery been charged with the alternative misdemeanor count instead, he would have had no constitutional right to appointed counsel, unless he was later sentenced to a term of imprisonment after being convicted of that charge. See Scott v. Illinois, 440 U.S. 367, 369 (1979). The fact that no prosecutor had chosen from among the potential charges in Rothgery s case makes clear that the government s position toward him had not solidified at the time of his initial article 15.17 appearance. Third, the article 15.17 appearance is not one at which the arrestee finds himself faced with the prosecutorial forces of organized society. Kirby, 406 U.S., at 689. As with every Texas arrestee, Rothgery s article 15.17 appearance was a primarily administrative matter. He stood in front of a little glass window, filled out forms, and listened to the magistrate give him various warnings required by Miranda and Texas law. 8 SJ Opp. Ex. 3 at 64. No prosecutorial forces of any sort were arrayed against him at the little glass window when he stood before the magistrate. Pet. App. at 6. And more generally, consistent with Gerstein, the article 15.17 appearance 8 The magistrate also reviewed the affidavit submitted by the arresting officer and concluded that it was sufficient to establish probable cause, although it is not clear whether he did so immediately before or while Rothgery appeared before him. Tex. Code Crim. Proc. art. 15.17; SJ Ex. A.